Fox v. Mackay

Citations

• 125 Cal. 54
• 57 P. 672
• 1899 Cal. LEXIS 799

Syllabus

<p>Mining Corporation—Action by Stockholders—Fraudulent Milling of Orb—Breach of Contract—Insufficient Complaint.—In an action by a stockholder o>f a mining corporation, for an accounting of ores claimed to have been fraudulently milled under a contract with a milling company, which provided that the ores “shall be worked in the usual and ordinary manner of working, like ores, and returns therefrom shall not be less than seventy per cent of the pulp assay,” a complaint alleging that seven hundred and thirty-four thousand tons of ore were milled under the contract and that said ores were milled in a very superficial and imperfect manner, and that less than seventy per cent was returned by the milling company to the mining company for more than forty-one thousand two hundred and seventy-five tons of ore, without stating how much less, or that the percentage was of the pulp assay, or when such tons of ore were milled, is not sufficient to support a judgment for the plaintiff.</p> <p>Id.—Construction Against Pleader—Bulb De Minimis.—Under the rule that pleadings are to be construed against the pleader, it may be assumed that the allegation of “less than seventy per cent” is satisfied by a shortage of the smallest fraction of one per cent, and that the rule of de minimis would bar a recovery.</p> <p>Id.—Construction of Contract—Average Percentage.—The contract with the milling company for the yielding of “not less than seventy per cent of the pulp assay” of the ores, rock, and earth worked is not to be construed as requiring seventy per cent of the pulp assay of each ton worked, but imports that upon a fair and honest milling of the ore the milling company was bound to return an average of at least seventy per cent of the pulp assay. Where it appeared that for four specified months the return to the mining company was less than seventy per cent of the pulp assay, but that the average of seventy per cent for the entire time was made up in the succeeding months, such avera